Articles Posted in Procedure

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The calendar turning to September signifies different things to different people. For some it signals the court-rules-225x300end of heat and humidity, cooler temperatures and changing leaves. For others, it’s the kids finally going back to school. To still others, it signals the start of the football season, the excitement of baseball pennant races and playoffs, or the opening of basketball or hockey training camps. However, for lawyers such as myself, the holidays come early as each September brings with it special gifts, namely the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey.

Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part practice, many being in response to, or in clarification of, statutory changes that went into effect over the last few years. I will summarize and discuss these Amendments over the course of several blog posts.

Arbitration

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While not limited to family law matters, at the conclusion of a case a client may often have an outstanding balance due for legal fees in regards to services rendered by the attorney in the a615c5170cfbe42ac3ed71065bce6f12-300x199underlying action. Most of the time payment arrangements end up getting worked out. Sometimes they are not. In those instances most attorneys are reluctant to initiate legal proceedings against their former client to collect the outstanding fees, viewing it as a matter of last resort. However, even before being able to pursue same, an attorney is obligated to advise the client of his/her opportunity to request fee arbitration, a program implemented by the New Jersey Supreme Court as a means to resolve fee disputes between an attorney and client under R.1:20A-1 et. seq. Sometimes clients choose not to proceed with fee arbitration. Other times, a fee arbitration request may be declined as being beyond the jurisdictional limits of the program. In those instances, an attorney may feel he/she is left with no alternative but to file a civil action complaint against his/her former client to collect its outstanding fee.

In certain of these instances, a former client may express dissatisfaction with the legal services rendered by the attorney on their behalf. Perhaps the client is displeased with what he/she views to be an unfavorable result, and blames the lawyer for this outcome. Perhaps the client questions the specific services rendered or fees charged. However, there may be times where the client believes that the attorney did not represent them properly or was somehow negligent, alleges that they sustained some sort of damage or loss, and which they assert gives rise to a claim for legal malpractice.

When must a claim for legal malpractice be brought? If an attorney has already filed a collection action, would this impact how and when such claims must be filed? Are there circumstances where a legal malpractice claim may be barred? In the recent case of Dimitrakopoulos v. Borrus et als 2019 N.J. LEXIS 272, 2019 WL 1065049, the New Jersey Supreme Court attempted to address and clarify these questions, specifically in the context of what is known as the Entire Controversy Doctrine.

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It is not uncommon as a family law practitioner to experience a difference in the way the family courts handle cases involving the children of divorced or divorcing spouses (where they are 772bcf531a8ff5549f90c16a75fd1d7f-1-300x200matrimonial cases bearing an “FM” docket number) in the dissolution unit, and children of non-married parents in the non-dissolution unit (those bearing a docket number starting in “FD”).  Non-dissolution cases are typically far more summary in fashion and are handled more quickly than they are in the in the cases of divorcing parents.   The good part of this is that the children’s cases may be processed more quickly and there is less uncertainty in their lives because the children are not enduring a longer, more drawn out litigation than children of divorcing parents sometimes have to survive.  In non-dissolution cases, however, because they often are so summary, the court does not have the opportunity to become as familiar with the facts and circumstances.

In the recently published Appellate Division opinion in the matter of J.G. v. J.H., A-1312-17 (App. Div. Jan. 2, 2019) expressed some disagreement over how summarily a family court judge resolved a custody dispute between unmarried parents.

John was born in 2012 to mother Jane and father Joseph.  In 2014 the parties entered into a non-dissolution order that provided for their agreement to share joint legal custody of John, with Jane having primary residential custody and Joseph having liberal visitation with him.  In 2015 the parties attempted to reconcile and vacated that order.  The reconciliation did not last.  Jane became engaged to another man and became pregnant.  Joseph filed an order to show cause accusing Jane and her fiance of drug use and asserting that she should not leave John alone with her fiance, asserting that he was a known drug user and convicted felon.  Joseph was awarded temporary sole custody of John based on the concern for violence in Jane’s home. The court directed that Jane’s visitation with John be supervised and that it occur outside her home.

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In the third and final blog post of this series, I will conclude my summary and discussion of the current 2018 Rule Amendments which have a direct or indirect impact upon Family Part practice in some fashion.

In this blog post, I will discuss a new New Jersey court rule which was adopted, Rule 4:86-7A, which addresses the financial maintenance of incapacitated adults who had been subject to prior Family Part support orders. The purpose of this rule was to give further effect to the terms of N.J.S.A. 2A:17-56.67, et seq. which went into effect in February of 2017. Commonly referred to as the “emancipation” statute, its focus was actually the modification of current law relating to the duration and termination of child support obligations. Under this law, the obligation to pay child support would terminate by “operation of law” and without order by the court on a date that a child marries, dies, enters the military service, or reaches 19 years of age, unless (1) another age for the termination of child support is specified in a court order, but in no event beyond the date the child reaches 23 years of age, or (2) upon written request seeking the continuation of child support beyond the age of 19 for a child (a) who is still enrolled in high school or other secondary education program, (b) was a student in a post-secondary educational program and enrolled for what the school considers to be full-time attendance during part of at least five (5) calendar months of the year, or (c) has a physical or mental disability as determined by the federal or state governmental agency existing prior to the child reaching age 19 and requiring continued child support. Absent this, a parent could only seek to extend child support beyond the age of 19 by motion (due to exceptional circumstances as may be approved by the court); however, the statute also provided that it was not intended to prevent a child who is beyond 23 years of age and/or his parent from seeking a court order requiring the payment of other forms of financial maintenance or reimbursement from a parent as authorized by law to the extent same was not payable or enforceable “child support” as defined in N.J.S.A. 2A:17-56.52, or prevent the court upon application due to exceptional circumstance including but not limited to a mental or physical disability, from converting a child support obligation to another form of financial maintenance for a child who had reached the age of 23.

The purpose of Rule 4:86-7A was to set forth the process and procedure to be filed for an application for conversion of a child support obligation for an alleged or adjudicated incapacitated person who has reached the age of 23 to another form of financial maintenance pursuant to the aforementioned statute. First, the Rule distinguishes between whether there has or has not been an adjudication of incapacity of the person for whom financial maintenance is being sought. If there has not already been an adjudication of incapacity, the plaintiff filing a complaint for adjudication of incapacity and the appointment of a guardian pursuant to Rule 4:86-2 may request such conversion in a separate count of the complaint. If there has already been an adjudication of incapacity, a guardian or custodial parent of that adjudicated incapacitated person may request such conversion by filing a motion on notice to the parent responsible for paying child support and any interested parties setting forth the basis for relief requested pursuant to Rule 4:86-7. In either event, the application shall set forth the exceptional circumstances pursuant to which such conversion is requested and shall annex thereto copies of any Chancery Division, Family Part orders relating to to the child support obligation, as well as a financial maintenance statement in such form as may be promulgated by the Administrative Director of the Courts.

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In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.

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In my last blog post I summarized some of the recent Court Rule amendments that went into effect this September. While there were only a limited number of changes in the Part V Rules affectingRule-Book-225x300 Family Part practice, I noted that there were amendments made in other sections of the Rules which had a direct or indirect impact upon Family Part practice in some fashion. In this blog post, I will discuss one of the more significant changes – those relating to actions to change the name of an adult and/or minor under Rule 4:72.

Several years back I wrote a blog post “What’s In A Name” in which I highlighted some of the practical and procedural considerations involved in effectuating a name change incident to a divorce. While at common law, any adult or emancipated person was at liberty to adopt any name as his or her legal name except for fraudulent or criminal purposes without resort to any court, if someone wished to change their name, that person was required to institute an action in “Superior Court” under N.J.S.A. 2A:52-1, et seq. by the filing of a verified complaint accompanied by a sworn affidavit. Court Rule R.4:72-1, et seq. further detailed the procedures to be followed in actions for a name change. However, neither the statute nor the rule specified which division or part of the “Superior Court” such name change actions were to be filed and heard, except for actions seeking a name change for a minor who was the subject of a pending family action or one concluded in the preceding three years, and in which case they were to be transferred to the Family Part in the vicinage in which that family action was pending or was concluded.

Consistent with the theme of most of the recent Rule amendments to delineate and clarify which Division or Part certain types of actions should be filed and heard, R. 4:72-1, et seq. has been substantially amended to address where such name change actions should be filed and heard. Further, the changes to this Rule also address the procedures relating to requests for a change of name incident to divorce which were silent in both N.J.S.A. 2A:52-1 and the prior versions of R. 4:72. Finally, the procedures governing the name change of minors were substantially modified as well.

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The rumor is we did have a summer this year. Besides what seemed like a few nice days, what passed for summer flew by like a flash. Suddenly it was Labor Day, which for most people signals theRule-Book-225x300 arrival of Fall. What else arrives each Fall? The annual Amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey arrive. Historically, any significant changes in the Part V Rules affecting Family Part practice are made every other year. This was an off-cycle year, meaning there was a paucity of amendments to the Family Part Rules this year. However, there were a number of Rule amendments in other sections of the Rules that either have a direct impact upon Family Part practice in some fashion, or may have some general application to aspects of this practice. I will summarize and discuss these Amendments over the course of several blog posts.

Besides an addition to Rule 5:22 involving juvenile matters, the only actual Amendment in Part V dealing with Family Part Practice is in regards to Rule5:1-2.  Rule 5:1-2(a) generally defines what types of “Family Actions” are to be filed and heard in the Chancery Division, Family Part. The prior version of this Rule, after delineating certain specific types of actions, included not once but twice catch-all language to include “all civil actions in which the principal claim”, as well as “all other civil actions and proceedings” which were “unique to and arising out of a family or family-type relationship”. Very broad language indeed. While the recent Amendments to this Rule may seem subtle, they represent an attempt to better define what types of Family Actions are cognizable in the Family Part. While continuing to include reference “all actions in which the principal claim is unique to and arises out of a family or family-type relationship”, the recent Amendment deleted reference to the term “civil” actions, and deleted the catch-all “all other civil actions and proceedings” language at the conclusion of the Rule. Palimony actions were added to those which should be filed and heard in the Family Part. Most importantly while the amended rule continues to include reference that “such action shall include all actions and proceedings referenced in Chapters II and III of Part V”, the language “unless otherwise provided in Rule 4:3-1(a)(4)” was added. What does this mean? This language was added for the purpose of cross-referencing those actions excepted from Family Part jurisdiction in light of the contemporaneous adoption of Rule 4:3-1(a)(4).

Please remember that the Part IV Rules are intended to govern Civil Actions generally, and which includes most Family Actions unless otherwise specifically addressed in the Part V Rules. Before turning our attention to Rule 4:3-1(a)(4), Rule 4:3-1(a) delineates generally which Court or Division a certain type of action should be instituted. Rule 4:3-1(a)(3) delineated the types of actions which were to be instituted in the Chancery Division, Family Part. However, it is curious to note that the language of this Rule was also subtlety amended to track some of the language changes to Rule 5:1-2(a), i.e. deleting the reference to “civil” and adding a reference to palimony actions, yet curiously continued to include the catch-all “all other actions and proceedings unique to and arising out of a family or family-type relationship” although deleted from Rule 5:1-2. What this means or whether it was an oversight or intentional is unclear. However, the language of the Rule referencing actions cognizable in the Family Part to “include all actions and proceedings referenced in Part V of these rules” is now followed by the limiting language “unless otherwise provided in sub-paragraphs (a)(4) of this rule”, referring in this instance to the newly enacted Rule 4:3-1(a)(4). This new rule sub-paragraph specifically refers to variety of actions named therein which may be associated with Family Actions, but which constitute exceptions from the normal Family Part practice. Said another way, while they may generally arise out of a family or family-type relationship, Rule 4:3-1(a)(4) attempts to delineate which Division or Part certain types of actions should be filed and heard, and not necessarily in the Family Part. Rule 4:3-1(a)(4) identifies nine (9) such types of actions. I will briefly comment on each of them.

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It is not uncommon for a litigant to be dissatisfied with a court’s order. Even if you think you have a solid case, there is no guarantee that the court will see things your way.  Additionally, judges dofile7001246481267-300x225 not always get it right.  When a court makes a legal error, the typical way to address that error is to file an appeal.  But a case has to be decided with finality on all issues to get to the Appellate Division as of right, without having to ask for permission to appeal, which is difficult to get.  Continue reading ›

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On January 17, 2018, the New Jersey Appellate Division decided the case of G.M. v. C.V. (A4820-15). The case involved the appeal of a May 6, 2016 order that denied the defendant’s request to vacate a final restraining order (FRO) entered in 2004. The reason for the denial that Trial Court gave was that the defendant’s motion did not include the transcript of the underlying 2004 FRO hearing. Continue reading ›

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In the third and final blog post of this series, I will conclude my summary and discussion of the current 2017 Family Part Rule Amendments, including those of more general application. Continue reading ›